Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BS122316, Thomas I. McKnew, Jr., Judge.
Sven Toorvald, in Pro. Per., for Plaintiff and Appellant Sven Toorvald.
Jenkins & Hogin, Michael Jenkins and Gregg Kovacevich for Defendants and Respondents City of West Hollywood; Katten Muchin Rosenman, Joshua Wayser and Anne Alexander for Defendants and Respondents 507 Orlando LLC and Demitri Samaha.
TURNER, P. J.
I. INTRODUCTION
Plaintiff, Sven Toorvald, appeals from a judgment denying his mandate petition filed against defendant, the City of West Hollywood (“the city”). Plaintiff sought to vacate the city council’s approval of a proposed project located at 507-509 North Orlando Avenue. Plaintiff argues the city council’s project approval: violates West Hollywood Municipal Code (“Municipal Code”) section 19.20.170(A) because it allows obstruction of his solar powered halogen security light; violates the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.); and is not supported with sufficient findings. We affirm the judgment in all respects.
All further statutory references are to the Public Resources Code unless otherwise indicated.
II. BACKGROUND
A. Overview
On October 9, 2007, the owners of 507-509 North Orlando Avenue and real parties in interest, Demitri Samaha and 507 Orlando LLC, filed an application for approval of the project. The project consists of the: demolition of two single-family homes; merging of two lots; and construction of a four-story, nine-unit courtyard condominium building with subterranean parking. The completed project was to be surrounded by one-story houses which were built around the 1920s. Plaintiff owns a multi-unit parcel which is adjacent to and north of the project. Plaintiff’s property contains a single-story home, two detached studio apartments and a fourth unit atop a detached garage. The project is zoned R3-C (multi-family medium density) and designated as R3-3 (multi-family residential) in the city’s general plan.
B. The May 1, 2008 Planning Commission Hearing
On May 1, 2008, a public hearing was held concerning the project. By the time of the May 1, 2008 hearing, Mr. Samaha and his corporation had made some changes to the project. The changes included eight rather than nine proposed condominium units. The planning staff recommended approval of the project. The staff report states the areas surrounding the project have varied stories including: an existing single-family home to the north; two-story multi-family building to the south; and a three-story and a four-story multi-family building to the west. The planning staff noted that the design review committee had concerns regarding courtyard visibility and tandem disabled parking spaces which had not been addressed by Mr. Samaha and his corporation. The planning staff also addressed matters raised during a public comment period including height, compatibility, development standards exceptions under courtyard incentives, traffic congestion, and parking issues.
The staff further noted that an initial study and negative declaration were prepared for the project. The initial study explored the potential historic or cultural significance for demolishing the existing structures. The existing properties were determined to be ineligible for local resource development. To update the city’s Historic Resources Survey, the Architectural Resources Group conducted a review of all residential properties built before 1961 in R2, R3 and R4 zones. The properties were evaluated as part of a larger ongoing survey of multi-family residential portions of the city. The subject properties were not recognized for cultural significance or potential historic resources. A negative declaration was prepared after the initial study concluded that there were no other potential significant impacts to the environment. A public comment period began on February 14 and concluded on April 3, 2008. No comments were received by staff regarding the negative declaration.
The planning staff also reported that the project complied with Municipal Code section 19.20.060, the West Hollywood Green Building Program. Pursuant to Municipal Code section 19.20.060(B)(2), a project in order to secure approval must receive a minimum of 60 points under the West Hollywood Green Building Point System Table. For a project to secure additional approval, it must have at least 90 points under the West Hollywood Green Building Point System Table. (Mun. Code § 19.20.060(C).) The project had 61 points according to the planning staff report.
The planning commission continued the hearing for 90 days to allow Mr. Samaha and his corporation to redesign the project to comply with courtyard standards. The planning commission also suggested: a reduction in the size of the units; allowing a ninth unit to be placed back into the project; step backs for the upper floors; additional environmentally favorable features be incorporated; reconsideration by the design review committee; and a neighborhood meeting.
C. The November 20, 2008 Planning Commission Hearing
On June 18, 2008, Mr. Samaha and his corporation submitted new plans to the planning commission. The planning commission staff submitted a report recommending approval of the project. The design review subcommittee was “impressed” with the changes that were made in consideration of the commission’s suggestion. The project had been redesigned and conformed to the planning commission’s suggestions by: opening the front entrance to the courtyard to the sky; reducing the interior square feet of the units; adding a ninth unit with one parking space; adding solar panels; and adding balconies to the north and southeast top corners of the front façade. Mr. Samaha had met with the neighbors on September 8, 2008, to discuss the new design.
An initial study and negative declaration were prepared for the proposed project. The initial study contained the same determinations which had been made in the May 1, 2008. A public comment period began on October 30, 2008 and concluded on November 20, 2008. No comments were received by staff regarding the negative declaration and no new evidence or documentation was presented.
The planning staff noted that public comments were made to the commission regarding height, scale, mass and bulk of the courtyard project. In a September 11, 2008 letter, plaintiff requested an interpretation as to how the city’s community development staff determined the appropriate number of permissible stories for the project. Plaintiff asked, “[M]ay we please get your official interpretation of... the General Plan with regard to... how the reviewing authority makes the final determination of the number of stories, ie, ‘depending on the predominant existing height.’”
The planning staff responded to plaintiff’s building height inquiry as follows. In 1991, the city’s general plan policy No. 1.28.22 was amended to establish a base height of 45 feet without reference to the number of stories in an R3.3 area. Policy No. 1.28.22 also provides the height may vary according to height averaging formulas outlined in the city’s zoning ordinance. But, height averaging was removed from the zoning ordinance as a method of calculation in May 2001. The planning staff concluded that Municipal Code section 19.060.040 governed the maximum amount of stories allowed in residential zoning districts. Under the amended zoning ordinance, there was no limit on stories “depending on the predominant existing” height. When the zoning ordinance amendment was adopted in 1991, the city council found the amended zoning ordinance was consistent with the general plan. The planning staff noted that in 2005 the city council overturned a planning commission decision which had denied an application for a four-story project. In 2005, the city council determined a four-story building was compatible with the mixture of building heights in the area.
The planning staff noted that Municipal Code section 19.20.060(C), the so-called green building ordinance, allowed specified incentives for “high-achieving” projects. Plaintiff had asked whether Municipal Code section 19.20.060(C)(1) allowed for qualifying projects to include one additional unit above maximum density or simply one unit without a required parking space. The planning staff responded that Municipal Code section 19.20.060(C)(1) allowed a high-achieving project to have one additional residential unit not to exceed 700 square feet. The additional unit would not have to provide an additional parking spot. An additional parking space ordinarily would have been required for the unit. The planning staff noted, “Clearly, the ‘one additional unit’ is intended to allow for one additional unit beyond the maximum density otherwise allowed by the Zoning Ordinance.” Plaintiff also questioned whether the parking incentive for Municipal Code sections 19.20.060 (green housing) and 19.36.265 (courtyard housing) could be combined. The planning staff responded that there were no specific exclusions limiting a combination of incentives in either Municipal Code sections 19.20.060 (green housing) and 19.36.265 (courtyard housing).
On November 20, 2008, the planning commission unanimously adopted the planning director’s response to plaintiff’s height and incentive inquiries. The commission then considered the revised plans at a public hearing. The commission adopted a negative declaration and approved the project.
D. Plaintiff’s Appeal To The City Council
On December 1, 2008, plaintiff appealed the planning commission’s decision to the city council. Plaintiff argued: the project did not comply with zoning ordinances requiring compatibility regarding mass, scale and bulk; the planning commission’s interpretation of local laws regarding allowable height or the number of stories “depending on the predominant existing height” was erroneous; the planning commission’s interpretation of Municipal Code sections 19.20.060 (green housing) and 19.36.265 (courtyard housing) and the allowable combining of incentives was erroneous; the project violated Civil Code section 714, subdivision (a) regarding installation or use of solar energy systems; and the project violated the Brown Act because the plans were not made available to the public for comment in a timely manner. (Gov. Code, § 54950 et seq.) In supplemental documents, plaintiff raised the issue of whether the city should have prepared an environmental impact report rather than rely on a negative declaration.
On August 3, 2009, the city council denied plaintiff’s request to entirely overturn the planning commission’s approval of the project. But the city council partially granted plaintiff’s request to reduce the size of the ground floor setback. The city council determined that the front of the building should be set back to be more compatible with surrounding buildings setbacks. The city council concluded Municipal Code section 19.20.170(A) relating to solar access and equipment did not apply to the project. The city council found, “In order to determine if the project at 507-509 Orlando shades [plaintiff’s] solar panels, the solar panels would have needed to be in place prior to the approval of the project by the Planning Commission on November 20, 2008.”
The city council also concluded the incentives for Municipal Code sections 19.20.060 (green housing) and 19.36.265 (courtyard housing) could be combined. The city council ruled: “The final interpretation by the Community Development Director and the Planning Commission was that Green Building incentives are intended to be combined with other incentives, specifically courtyard incentives. The ordinance does not have any language prohibiting this combination. No new evidence has been received regarding the Green Building incentive that would justify overturning the Planning Commission’s action.”
E. The Mandate Petition
On August 28, 2009, plaintiff filed his mandate petition. The mandate petition alleged that, on May 20, 2007, plaintiff installed a solar energy system atop the roof of his home. Prior to installation, plaintiff applied for a permit to install the solar energy system. Plaintiff was advised his solar energy system was exempt from permit requirements. On July 6, 2009, plaintiff submitted a certified “sun/shade” study, which showed the height differences in the project building and plaintiff’s house would cause an obstruction to his solar absorption for eight months of the year. According to plaintiff, the project would completely shade in excess of 10 percent of his existing solar energy system 8 months of the year. The mandate petition alleged the August 3, 2009 city council decision erroneously stated plaintiff’s solar panels were not in place prior to the November 20, 2008 planning commission approval.
Plaintiff further alleged the city council’s August 3, 2009 approval should be set aside because, among other things, it consisted of a negative declaration and an environmental impact report should have been prepared. It was alleged the project approval violated the city’s general plan, the city’s compatibility ordinance, Municipal Code section 19.44.050(C) and section G-08.050(b) of the Multi-Family Housing law. According to plaintiff, a four-story building conflicted with the general plan and specified Municipal Code sections because the neighborhood had 20 buildings, 18 of which are 1 or 2 stories. The mandate petition alleged, however, among the 20 buildings were a three-story building and a four-story building “across and up the street” respectively. The mandate petition further alleged the city council previously approved two four-story buildings in the zoning district but on different streets and set in different contexts. The mandate petition alleged that an environmental impact report would have addressed the potentially significant aesthetic, solar access and land use impacts resulting from placing a four-story building between two single-story homes.
According to the mandate petition, the original general plan and an ordinance limited height to the “predominant existing height” of the surrounding buildings. Height averaging was a method of calculation. In 1991 the general plan’s policy No. 1.28.22 was amended to establish a base height of 45 feet without reference to stories. In 2001, the city council removed height averaging as a method of calculation but, surrounding buildings remained the basis for determining the number of allowable stories. The city council corrected the inconsistency by changing the zoning of the area from R3C to R3B on June 15, 2009. This was two months prior to the August 3, 2009 project approval. Plaintiff alleged the city’s initial study did not adequately analyze the cumulative effect of combining bonuses and waivers for Municipal Code sections 19.20.060 (green housing) and 19.36.265 (courtyard housing) incentives. These included: a density bonus; a setback waiver; parking bonuses; and other relief from the city’s general building requirements. The mandate petition alleged without the incentives, solar access, aesthetic and land use impacts would have been reduced. Plaintiff requested relief against the city for its alleged: violation of the California Environmental Quality Act; lack of compliance with general plan; and violation of municipal code requirements.
The trial court denied the mandate petition. The trial court found the city was correct-plaintiff’s solar powered five-pound outdoor light system was not a solar energy system within the meaning of Municipal Code section 19.20.170(A) or Civil Code section 801.5, subdivision (a)(1). The trial court further ruled: plaintiff did not dispute the city’s finding the project would not cause a substantial adverse change in the significance of any historical resource; exempt projects were deemed not to have a significant impact on the environment; plaintiff’s aesthetic challenges related to height or mass were insufficient to raise a fair argument; the project was redesigned and found to be consistent with the general plan and zoning regulations; the city council properly concluded the project was consistent with the general plan, a finding supported by the evidence; the project met the 45 feet height restriction for an R3.3 zone; the 45 feet restriction does not limit the stories; the project approval should not be set aside for any cumulative impacts; the initial study included an analysis of cumulative impacts; and the city’ council’s finding there were no significant impacts was reasonable because there was no substantial evidence of any individually potentially significant effects by the project. After judgment was entered, plaintiff filed this timely appeal.
III. DISCUSSION
A. Review Standard
Our Supreme Court has held: “A petition for administrative mandamus is appropriate when the party seeks review of a ‘determination, finding, or decision of a public agency, made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency, on the grounds of noncompliance with [applicable law], ’ generally referred to as an ‘adjudicatory’ or ‘quasi-judicial’ decision. [Citations]” (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 567; see Tomlison v. County of Alameda (2010) 188 Cal.App.4th 1406, 1415-1416, fn. 3.) When an agency decision does not involve a fundamental vested right, both we and the trial court review it under the deferential substantial evidence. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32; Berg v. Davi (2005) 130 Cal.App.4th 223, 228.) Under this standard of review, all relevant evidence from the administrative record is considered but not reweighed. (Manning v. Fox (1984) 151 Cal.App.3d 531, 538-539; see also California Youth Authority v. State Personnel Bd. (2002) 104 Cal.App.4th 575, 584.) It is presumed the record contains evidence to support an agency’s findings and all conflicts are resolved in favor of its decision. (California Youth Authority v. State Personnel Bd., supra, 104 Cal.App.4th at p. 584; Berg v. Davi, supra, 130 Cal.App.4th at p. 228.) A decision is reversed only, if based on the evidence before the agency, no reasonable person could have reached the challenged conclusion. (Eden Hospital Dist. v. Belshe (1998) 65 Cal.App.4th 908, 915-916; Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)
B. Solar Access
Plaintiff contends the project violates Municipal Code section 19.20.170(A). An agency’s interpretation of its own ordinances is a question of law. The agency’s view of the meaning of such local laws is entitled to deference unless it is clearly erroneous or unauthorized. (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 8, 12-13; Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1193.) Municipal Code section 19.20.170(A) provides: “Protection of Solar Access. A structure, fence, or wall shall not be constructed or modified in a residential zoning district, and vegetation may not be placed or allowed to grow, so as to obstruct more than 10 percent of the absorption area of a solar energy system on a neighboring parcel at any time.” Plaintiff argues the trial court erroneously concluded the solar powered halogen light system was not a solar energy system within the meaning of Municipal Code section 19.20.170(A). We respectfully disagree.
The trial court could properly rule the city council’s conclusion plaintiff’s solar powered halogen security light did not qualify as a “solar energy system” within the meaning of Municipal Code section 19.20.170(A) was not clearly erroneous or unauthorized. The opening brief describes plaintiff’s system, “an industry standard collector (one foot by one foot–comparable in size to a solar panel on a freeway call box), separate inverter and storage battery, [which] collects, stores and distributes solar energy for electrical generation.” The solar collector powers a motion activated halogen security floodlight. The device weighs five pounds.
It was not clearly erroneous for the city council to conclude there was no violation of Municipal Code section 19.20.170(A) predicated on plaintiff’s theory his halogen security light will be obstructed by the project. Plaintiff’s theory rests on the claim he has a “solar energy system” within the meaning of Municipal Code section 19.20.170(A) as a matter of law. The term “solar energy system” is not defined in the Municipal Code. However, some guidance may be found as to the meaning of “solar energy system” from state laws regulating solar access. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 473; Steinberg v. Amplica, Inc. (1986) 42 Cal.3d 1198, 1205.) Civil Code section 801.5, subdivision (a)(1) defines a solar energy systems as follows, “Any solar collector or other solar energy device whose primary purpose is to provide for the collection, storage, and distribution of solar energy for space heating, space cooling, electric generation, or water heating.” There is no further explanation of what a solar collector or solar energy device is in the Civil Code.
Also somewhat relevant is the Solar Shade Control Act (§ 25980 et seq.), which defines the term “solar collector” and sets standards for location of such devices. The Solar Shade Control act was enacted in 1978 to protect solar energy systems against obstruction by neighboring trees and foliage. (Zipperer v. County of Santa Clara (2005) 133 Cal.App.4th 1013, 1021; Kucera v. Lizza (1997) 59 Cal.App.4th 1141, 1152; Sher v. Leiderman (1986) 181 Cal.App.3d 867, 880.) As amended in 2008, section 25981 provides: “(a) As used in this chapter, ‘solar collector’ means a fixed device, structure, or part of a device or structure, on the roof of a building, that is used primarily to transform solar energy into thermal, chemical, or electrical energy. The solar collector shall be used as part of a system that makes use of solar energy for any or all of the following purposes: [¶] (1) Water heating. [¶] (2) Space heating or cooling. [¶] (3) Power generation. [¶] (b) Notwithstanding subdivision (a), for the purpose of this chapter, ‘solar collector’ includes a fixed device, structure, or part of a device or structure that is used primarily to transform solar energy into thermal, chemical, or electrical energy and that is installed on the ground because a solar collector cannot be installed on the roof of the building receiving the energy due to inappropriate roofing material, slope of the roof, structural shading, or orientation of the building. [¶] (c) For the purposes of this chapter, ‘solar collector’ does not include a solar collector that is designed and intended to offset more than the building’s electricity demand. [¶] (d) For purposes of this chapter, the location of a solar collector is required to comply with the local building and setback regulations, and to be set back not less than five feet from the property line, and not less than 10 feet above the ground. A solar collector may be less than 10 feet in height only if, in addition to the five-foot setback, the solar collector is set back three times the amount lowered.” Thus, at least with respect to one solar access protection law, solar collectors are devices or structures which are fixed on the roof of a building. Alternatively, solar collectors are devices or structures affixed to the ground because they cannot be placed on the roof.
There is scant California decisional authority interpreting the term “solar energy system” but even then the term is not conclusively helpful to plaintiff. For example, William Lyon Co. v. Franchise Tax Bd. (1992) 4 Cal.App.4th 267, 273-276 interpreted the term “solar energy system” under former Revenue and Taxation section 23601 as it applied to south-facing “solar glazing systems” installed in conjunction with “thermal mass” tiles for claimed tax credits. The Court of Appeal concluded “solar energy system” meant an installed mechanism with multiple parts working together for the common purpose of providing heat to maintain a comfortable temperature within a living space. In addition, Sher v. Leiderman, supra, 181 Cal.App.3d at pp. 881-882 considered whether south-facing windows and skylights which were part of home’s design were part of a solar energy system within the meaning of former section 25981. The Court of Appeal concluded the windows were not a “solar energy system” because their primary purpose was not to convert solar energy into thermal energy. (Sher v. Leiderman, supra, 181 Cal.App.3d at pp. 881-882.)
We are unable to conclude the city council’s ruling that plaintiff’s solar powered halogen security light is not a solar energy system was clearly erroneous or unauthorized. No doubt, plaintiff argued before the city council that his solar powered system was primarily used to collect solar energy for electrical generation but presented no conclusive evidence on the subject. The language of Civil Code section 801.5 requires that a primary purpose of the solar collector or device would be for electrical generation. However, there is no evidence establishing the primary function of the solar powered halogen security light is to convert solar energy into electrical energy in any significant way. Furthermore, there was no substantial evidence the collector or device was fixed or stationery so that his solar access would be impacted by the project. Plaintiff’s unsubstantiated fears did not amount to a factual foundation that the project would preclude his use of a halogen security light. (Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 901; Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1417; Perley v. Board of Supervisors (1982) 137 Cal.App.3d 424, 436-437.) Rather, the evidence suggests the device is lightweight and portable. Although the report states the solar panel is located on the roof, it does not state the device is so fixed or located it cannot be relocated. The report does not state where the device was located or fixed on the November 20, 2008 project approval date. The record only contains a vague timeline and claim that plaintiff will not be able to operate his halogen security light, which may or may not have been installed at the time of the project approval. Because there is no clear error or act in excess of its authority, we must defer to the city’s view that Municipal Code section 19.20.170(A) did not apply to the project. (Yamaha Corp. of America v. State Bd. of Equalization, supra, 19 Cal.4th at pp. 8, 12-13; Anderson First Coalition v. City of Anderson, supra, 130 Cal.App.4th at p. 1193; Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, 1015.) We need not address the city’s contention the city council’s finding there was insufficient evidence plaintiff’s system was installed when the project was approved by the planning commission was clearly erroneous or unauthorized.
C. Environmental Impact Report Issue
1. The Class 32 exemption
Plaintiff argues the city should have prepared an environmental impact report rather than a negative declaration. Section 21151 requires all local agencies to prepare an environmental impact report on any project which may have a significant effect on the environment. An environmental impact report must be prepared for all discretionary projects that have a direct or an ultimate impact on the environment. (§ 21080; City of Antioch v. City Council of City of Pittsburgh (1986) 187 Cal.App.3d 1325, 1330; City of Livermore v. Local Agency Formation Com. (1986) 184 Cal.App.3d 531, 537.) A negative declaration is independently reviewed for substantial evidence that a “fair argument” can be made that a proposed project may have a significant effect on the environment. (Inyo Citizens for Better Planning v. Board of Supervisors (2009) 180 Cal.App.4th 1, 7-8; Arviv Enterprises, Inc. v. South Valley Area Planning Com. (2002) 101 Cal.App.4th 1333, 1346.) But, substantial evidence is not: argument; speculation; unsubstantiated opinion or narrative; or matters that are clearly inaccurate or erroneous. (§ 21080, subd. (e)(2); Cal. Code Regs., tit. 14, § 15384(a); City of Redlands v. County of San Bernardino (2002) 96 Cal.App.4th 398, 410, & fn. 27.)
The city argues no environmental impact report need be prepared because the project qualified for a Class 32 in-fill exemption. The city undertook an initial study to analyze the project because it was located in an area where it was in the process of preparing a historic resources survey of multi-family zoned properties. The initial study culminated in a negative declaration.
Some projects are categorically exempt from coverage by the California Environmental Quality Act pursuant to administrative regulation because they have no significant environmental effect. (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 112-113; No Oil, Inc. v. City of Los Angeles (1974)13 Cal.3d 68, 74.) A project that falls within a categorical exemption is not subject to the environmental impact report preparation requirement. (§§ 21083, 21084; Cal. Code Regs., tit. 14, § 15002, subd. (k)(1); California Farm Bureau Federation v. California Wildlife Conservation Bd. (2006) 143 Cal.App.4th 173, 184; Save Our Carmel River v. Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th 677, 689.) The city argues the project qualified for a Class 32 exemption. (Cal. Code Regs., tit. 14, § 15332.) Code of Regulations title 14, section 15332 specifies the criteria for a Class 32 in-fill project as follows: “Class 32 consists of projects characterized as in-fill development meeting the conditions described in this section. [¶] (a) The project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations. [¶] (b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. [¶] (c) The project site has no value, as habitat for endangered, rare or threatened species. [¶] (d) Approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality. [¶] (e) The site can be adequately served by all required utilities and public services.”
The city established and plaintiff does not dispute that the project meets the Class 32 in-fill exemption. Rather, plaintiff claims several regulatory exceptions to the Class 32 in-fill exemption apply. California Code of Regulations, title 14, section 15300.2 identifies several exceptions to the Class 32 in-fill exemption. The exceptions involve such factors as location, cumulative impact or unusual circumstances. (Salmon Protection and Watershed Network v. County of Marin (2004) 125 Cal.App.4th 1098, 1106.) Plaintiff argues the project is not exempt because there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. (Cal. Code Regs., tit. 14, § 15300.2, subd. (c) .) Plaintiff identifies no significant impacts nor unusual circumstances. A party challenging an exemption has the burden of showing an exception applies. (Salmon Protection and Watershed Network v. County of Marin, supra, 125 Cal.App.4th at p. 1106; Fairbank v. City of Mill Valley (1999) 75 Cal.App.4th 1243, 1259.) Presumably plaintiff is referring to his solar access claim. But, the city council reasonably could have found that plaintiff’s personal concerns about mass and height from a neighboring structure (which purportedly would interfere with his portable halogen security light) do not rise to the level of unusual circumstances. (See Porterville Citizens for Responsible Hillside Development v. City of Porterville, supra, 157 Cal.App.4th at pp. 900-901; Mira Mar Mobile Community v. Oceanside (2004) 119 Cal.App.4th 477, 492.) Thus, the city council could reasonably find no exception to the Class 32 in-fill exemption was established. Furthermore, there is no merit to plaintiff’s argument the city failed to file an exemption notice. Once the exemption was met, the project may be implemented without any compliance with the California Environmental Quality Act. (Association for Protection etc. Values v. City of Ukiah (1991) 2 Cal.App.4th 720, 726; accord Tomlinson v. County of Alameda, supra, 188 Cal.App.4th at pp. 1415-1416, Save Our Carmel River v. Monterey Peninsula Water Management Dist., supra, 141 Cal.App.4th at p. 688.)
California Code of Regulations, title 14, section 15300.2, subdivision (c) states, “A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.”
2. General Plan Consistency
Plaintiff contends the project is inconsistent with the general plan. As noted, inconsistency with the general plan can be a ground for finding a Class 32 exception is inapplicable. (Cal. Code Regs., tit. 14, § 15332, subd. (a).) Further, it is an independent ground for setting aside the project. Plaintiff contends a fair argument can be made there will be a massive scale and height impact because the project will be a four-story building between two one-story homes. According to plaintiff, the city council approved the project without ensuring consistency with the following general plan language, “Residential areas characterized by a mix of two-and three-story buildings will be permitted to develop at 36 units per acre and at a range of heights from 25 feet (two stories) to 45 feet and three stories, depending on the predominant existing height.”
The city council found the project was consistent with the general plan. We accord great deference to an agency’s finding of consistency with its own general plan. (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 677-678; Concerned Citizens of Calaveras County v. Board of Supervisors (1985) 166 Cal.App.3d 90, 96.) The city council’s interpretation of its general plan has a strong presumption of regularity. (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco, supra, 102 Cal.App.4th at p. 677 fn. 9; Sequoyah Hills Homeowners Assn. v. Oakland (1993) 23 Cal.App.4th 704, 717.) Furthermore, a finding of consistency requires only that the proposed project be compatible with the objectives, policies, general land uses, and programs specified in the general plan. There is no requirement a project rigidly conform to the general plan. (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco, supra, 102 Cal.App.4th at p. 678; Sequoyah Hills Homeowners Assn. v. Oakland, supra, 23 Cal.App.4th at p. 717.)
Plaintiff has not shown sufficient irregularity between the project and the general plan with respect to height or mass to permit the project approval to be set aside. The project will be 45 feet tall with 4 stories. This is permissible in the general plan land use designation R3.3 and the zoning map R3C. Municipal Code section 19.06.040 permits buildings up to 45 feet in height in zoning area R3C. The zoning ordinance does not limit the amount of stories a building can have. The city council could properly find that the project was in harmony with the general plan. (San Franciscans Upholding the Downtown Plan v. City and County of San Francisco, supra, 102 Cal.App.4th at p. 678; Sequoyah Hills Homeowners Assn. v. Oakland, supra, 23 Cal.App.4th at pp. 719-720.) Thus, any alleged inconsistency between the general plan and the project is not, under these circumstances, a ground for setting aside the city council’s determinations as to the Class 32 exemption or as a separate ground for relief.
3. Aesthetics
Plaintiff argues there is a fair argument the project may have a significant aesthetic impact. Presumably, plaintiff is contending that the aesthetic considerations are so significant that an environmental impact report had to be prepared. As noted though, the project is entirely exempt from the California Environmental Quality Act. In any event, the city council found the project was “consistent with the scale, bulk and mass of existing structures” near the project and did not impair the integrity and character of the zoning district in which it is to be located. The city council found, “[T]his building is designed with a degree of articulation and variation, and coherency of detailing that meets and/or exceeds the existing integrity and character of the buildings in its immediate district, the majority of which are simple, modernist and rectilinear.” The city council also found: “Furthermore, as in many areas of West Hollywood, the buildings in this neighborhood are an eclectic assortment of buildings of one, two, three and four-story structures of varying architectural character that sit on single, two, three or four adjoining parcels. The four-story multi-family building is consistent with the constellation of assorted building types, mass and scale in the vicinity.” The city council made these findings after the project was redesigned to address the planning commission’s suggestions as well as the public’s concerns.
Plaintiff argues the four-story building surrounded by one-story homes is significant and that design changes did not mitigate the aesthetic impacts to a level of insignificance. But, as noted, the possibility of significant adverse environmental impact is not established simply because of individualized complaints regarding a project’s aesthetic impact. (Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 375-376; Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 584-593.) Plaintiff presented no evidence which established an aesthetic impact on the general neighborhood. Plaintiff’s opinions, standing alone, are not evidence supporting a fair argument establishing an aesthetic impact argument as a matter of law.
4. Cumulative impacts
Plaintiff argues the city failed to consider the cumulative impact from combining multiple incentives and bonuses in a single project. Presumably, plaintiff is contending the cumulative impacts are so significant that an environmental impact report had to be prepared. As noted though, the project is entirely exempt from the California Environmental Quality Act. Cumulative impacts must be considered where there is substantial evidence, “The project has possible environmental effects that are individually limited but cumulatively considerable.” (Cal. Code Regs., tit. 14, § 15065, subd. (a)(3); see § 21083, subd. (b)(2); Environmental Protection Information Center v. California Dept. of Forestry and Fire Protection (2008) 44 Cal.4th 459, 523.) The term “cumulatively considerable” means the incremental effects of an individual project are significant when viewed in connection with the effects of past, current and the effects of probable future projects. (Cal. Code Regs., tit. 14, § 15065, subd. (a)(3); § 21083, subd. (b)(2); Environmental Protection Information Center v. California Dept. of Forestry and Fire Protection, supra, 44 Cal.4th at p. 523.) This issue is reviewed for an abuse of discretion. (Environmental Protection Information Center v. California Dept. of Forestry and Fire Protection, supra, 44 Cal.4th at p. 525; Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 723.) Analysis under the rule of reason does not require absolute analytical perfection. (Environmental Protection Information Center v. California Dept. of Forestry and Fire Protection, supra, 44 Cal.4th at pp. 522-523; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 406, 407; Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729, 748.)
The city council’s analysis included a cumulative impact discussion. The city council’s decision was based on the planning staff’s analysis which in turn had relied on the initial study showing no significant impacts, culminating in a negative declaration. The project did not have any impacts that were considered to be significant. In addition, nothing in the city’s ordinances barred it from combining the Municipal Code sections 19.20.060 (green housing) and 19.36.265 (courtyard housing) incentives. This is to be contrasted to Municipal Code section 19.22.050(B)(2) which expressly limits the combination of incentives with affordable housing. As previously noted, plaintiff has failed to establish any alleged error in the cumulative impact analysis was prejudicial. (Environmental Protection Information Center v. California Dept. of Forestry and Fire Protection, supra, 44 Cal.4th at pp. 522-523; Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at pp. 406, 407; Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners, supra, 18 Cal.App.4th at p. 748.)
D. Incentives and Design Alternatives
Plaintiff argues the city failed to make requisite finding for courtyard incentives and alternate design bonuses which are authorized under Municipal Code section 19.36.265(A). The project allowed four courtyard incentives and one alternative design standard. The planning commission made findings with analysis on the courtyard incentives and the alternative design standard. The planning commission’s findings were affirmed by the city council. The findings are supported by substantial evidence and the city council’s mode of analysis is easy to follow as to why the incentives and bonuses were allowed. (Topanga Ass’n for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 514, 517 & fn. 16; Glendale Memorial Hospital & Health Center v. State Dept. of Mental Health (2001) 91 Cal.App.4th 129, 139-140.) The city council was not required to do more.
IV. DISPOSITION
The judgment is affirmed. Defendant, the City of West Hollywood, shall recover its costs incurred on appeal from plaintiff, Sven Toorvald.
We concur: ARMSTRONG, J., KRIEGLER, J.